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Perry v. Nemira

Appeals Court of Massachusetts, Suffolk

January 30, 2017

ADA NEMIRA & another.[1]

          Heard: October 5, 2016.

         Easement. Real Property, Easement, Deed, Adverse possession. Way, Private.

         Civil action commenced in the Land Court Department on December 21, 2011. The case was heard by Alexander H. Sands, III, J.

          Andrew S. Lee (Kenneth D. Wacks & Michelle A. McHale also present) for the defendants.

          Don Perry, pro se.

          Present: Meade, Milkey, & Kinder, JJ.

          MEADE, J.

         The plaintiff, Don Perry, and the defendants, Tomas and Ada Nemira, [2] own partially abutting properties known as 9B Maple Lane and 12 Maple Lane, respectively, located in a densely developed residential area of Hull. When the Nemiras fenced off what they believed to be part of their property, controversy arose regarding the parties' rights in and over three right of ways (ROW) abutting or in the vicinity of the parties' properties and leading to the public way, formerly known as Center Hill Avenue. Perry commenced this action claiming that (i) the fence blocks his right of ways, (ii) he and his predecessors have incorporated a portion of what have been called ROW 1 and ROW 3 into his front yard, and any rights the Nemiras had in those portions of ROWs 1 and 3 have been extinguished by adverse possession, (iii) he has acquired a prescriptive easement to turn around and park on certain sections of the Nemira property, and (iv) certain boundary lines in the deed description to the Nemira property and on a site plan dated November 24, 2010, are wrong. Perry sought an order to restrain the Nemiras from maintaining a fence on any portion of the disputed ROWs or any portion of Perry's property.

         For their part, the Nemiras denied that Perry has acquired any prescriptive rights to use their property or block ROWs 1 and 3. They also denied that their fence blocked Perry's right of way, and in counterclaims, they contended that Perry has no vehicular right of way over ROW 3 or if he did, it has been extinguished by nonuse.

         Following a trial, preceded by a view, the judge drafted a careful and detailed decision determining the rights of the parties. The parties' deeded rights over the ROWs became a primary issue at trial and the judge explored that issue in detail in his decision. The judge specifically noted that the parties did not claim and he did not consider prescriptive rights over the ROWs, other than Perry's claim that he has extinguished the Nemiras' rights over portions of ROWs 1 and 3 by adverse possession. Perry appeals from so much of the decision that determines he has failed to show that he has acquired certain property by adverse possession, he has no right to park on or turn around on the Nemira property, and he has only utility rights and no access rights in ROW 3, as well as from the judge's adoption of a 1911 plan. The Nemiras appeal from the determinations that they have no deeded right to pass and repass by vehicle over ROWs 1 and 3 and that if they did, their right has been partially extinguished by Perry's adverse possession. They also appeal from the conclusion that their right to pass over ROW 2 does not include a utility easement.

         Our review of the record reveals no error in the judge's determinations that Perry (i) has acquired a portion of ROW 1 and the southern terminus of ROW 3 by adverse possession, and (ii) has failed to prove he has acquired a prescriptive easement to park on or turn around on the Nemiras' property. Those determinations were based on credibility determinations of conflicting evidence and a view of the area involved and its topography, and have not been shown to be clearly erroneous. We write only to clarify the parties' deeded easement rights, and other errors discussed below.

         1. Background.

         We briefly describe the properties and ROWs at issue. The Nemira property and part of the Perry property are shown on a plan dated August, 1911, and recorded in the Plymouth registry of deeds in plan book 1, page 761 (the 1911 plan). The 1911 plan depicts six lots and a single public way, Center Hill Avenue, which runs in a north/south direction along the eastern boundary of the property shown on the plan. George Hall owned all six lots when he commissioned the plan in 1911. The public way abuts only lots 5 and 6. What consistently have been referred to as ROW 1 and ROW 3 in this litigation run perpendicular to each other and form an "L" on the plan. ROW 1 is shown as a twelve-foot ROW, beginning at an intersection with the public way between lots 5 and 6 and proceeding westerly 266 feet, forming the horizontal part of the L. Proceeding from the west, the northerly bound of ROW 1 consecutively abuts the southern bound of lots 5, 4, and 3. The southerly bound of ROW 1 abuts the northern bound of lot 6 and shows a one-foot strip between its southern bound and the northern bound of land of others, a portion of which is now owned by Perry. As ROW 1 proceeds west, it ends at its intersection with ROW 3, at the southeasterly corner of lot 2. ROW 3, the vertical part of the L, is shown as running from south to north and is comprised of five feet from lot 3's western boundary and five feet from lot 2's eastern boundary. It is apparent from viewing the 1911 plan that lots 2 and 3 would be landlocked without a right of way over ROWs 1 and 3 and lot 4 would be landlocked without a right of way over ROW 1.

         ROW 2 was first created in a 1941 deed when lot 3 was divided into northern and southern sections, lots 3A and 3B, respectively. It is described in the deed as running from west to southeast over the northerly section of lot 3B and then southerly along lot 3B's eastern border to ROW 1. The deed grants lot 3A an express access easement over ROW 2. The deed conveys lot 3A with reference to the 1911 plan and a plan recorded on September 20, 1941 (the 1941 plan), which shows lot 3A bound by ROW 3, ...

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